Lindsey's

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer or person to cease doing business with Erectors , Inc., or to force J. C. Penney or any other employer or person to cease doing business with the owner of Bel Aire Shopping Center at Shelbyville , Indiana. INDIANA AND KENTUCKY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. 633-8921. Edward M. Lindsey and Oscar H. Lindsey, a Partnership d/b/a Lindsey's and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 96-CA-2020. January 25, 1966 DECISION AND ORDER On September 1, 1965, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, findings that the Respond- ents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint, and recommended that these allegations be dismissed. There- after, the Respondents filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decison, the exceptions, brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The facts leading up to the alleged violation of Section 8(a) (3) as disclosed by the record and found by the Trial Examiner are as follows : During the late summer of 1964 Respondents decided to remodel their plant facilities at Lawrenceburg, Tennessee, so as to 156 NLRB No. 104. LINDSEY'S 1115 become more efficient and reduce labor costs in relationship to overall costs. At their Lawrenceburg plant, the planned remodeling consisted essentially of leveling the floors and adding new construction to the wings of the plant. About December 10, 1964, Respondents had sub- stantially completed their remodeling plans except for the completion of one wing on which they had started by adding portions of two new walls. On December 24, 1964, Respondents notified 12 employees that they were being laid off because of lack of work. On these facts, more fully described in his Decision, the Trial Examiner found that the Respondents laid off 12 employees on Decem- ber 24, 1964, in violation of Section 8(a) (3) and (1) of the Act, in order to discourage their employees from engaging in union activities. Despite the lack of evidence showing that Respondents' business was increasing so as to require expanded facilities with the same, or greater work force, the Trial Examiner inferred that such was the reason for the remodeling program. On the basis of this inference and because there was no plan to reduce the personnel complement which had been communicated to the employees, the Trial Examiner concluded that the reduction in force was discriminatory. We do not accept this conclusion of the Trial Examiner. Rather, on the basis of the record as a whole, including the credited testimony that Respondents' remodeling program was aimed at increased effi- ciency, we conclude that Respondents contemplated doing the same work with fewer employees, and, upon completion of its remodeling program, laying off those employees it would not need unless, of course, improved business conditions made such a step unnecessary. The fact that Respondents' business had not increased by the time the remodeling program was substantially completed and the fact that there is no indication in the record that the laid-off employees were replaced by new hires give additional support to the conclusion that the layoff was the natural consequence of Respondents' remodeling program, which was itself undertaken for legitimate economic reasons, as the General Counsel in effect concedes. Accordingly, and as we are unable to accept the Trial Examiner's assumption that, because Responents' did not give their employees advance notice of the layoff, it necessarily must follow that Respondents had not contemplated laying off any employees upon completion of the remodeling program,' we find that the General Counsel has not established by a preponder- ance of the evidence that the layoff was discriminatorily motivated. We shall, therefore, dismiss the complaint insofar as it alleges a viola- tion of Section 8 (a) (3) of the Act. ' There no doubt are many reasons why an employer might delay giving notice to his employees of a foreseeable reduction in force-one that comes readily to mind being the fact that such information might cause his employees to seek jobs elsewhere before the employer was ready to give up their services 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner's Recommended Order with the following modifications: [1. Delete paragraphs 1(a) and 2(a), (b), (c), and (d), and reletter the present paragraphs2(e) and2(f) as2(a) and (b). [2. Add the following as the last paragraph of the Recommended Order : [IT IS FURTHER ORDERED that the complaint insofar as it alleges that the Respondents discriminatorily laid off their employees in violation of Section 8 (a) (3) and (1) of the National Labor Relations Act be, and it hereby is, dismissed. [3. Delete the first and second indented paragraphs of the notice and the Note which appears immediately below the date and title.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and first amended charge filed on January 28 and March 8, 1965, respectively, by Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (herein sometimes called the Charging Party or the Union), the General Counsel for the National Labor Relations Board, by the Regional Director of Region 26 (Memphis , Tennessee ), issued a complaint dated March 19, 1965, against Edward M. Lindsey and Oscar H. Lindsey, a Partnership d/b/a Lindsey's (herein sometimes called Respondent or Respondents, Employer or Employers ) alleging violations of Section 8(a)(1) and (3) of the Act . Respondents' answer admits many of the fact but denies the commission of unfair labor practices. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone, at Lawrenceburg, Tennessee, on May 11 and 12, 1965. All parties were repre- sented at the hearing, participated therein, and were afforded the right to present evidence , to examine and cross-examine witnesses, to offer oral argument and to file briefs. Upon the entire record in this case , and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED The facts pertaining to the business of the Employers involved are based upon the pleadings and admissions therein. Edward M. Lindsey and Oscar H. Lindsey are, and have been at all times material herein, copartners doing business under the trade name of "Lindsey 's" with a plant and place of business located at Lawrenceburg , Tennessee , where they are engaged in the manufacture of church furniture During the 12 months preceding March 29, 1965 , Respondents, in the course and conduct of their business operations , sold and shipped from their Lawrenceburg, Tennessee, plant, finished products valued in excess of $50,000 directly to points located outside the State of Tennessee . As conceded by Respondents on the fore- going, it is concluded and found that Respondents are now, and have been at all times material herein , employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The facts pertaining to the labor organization involved are based upon the plead- ings and admissions therein. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers ' All credibility resolutions made with respect to the witnesses ' testimony are based on a composite evaluation of witness demeanor and logical consistency of evidence. LINDSEY'S 1117 of America , is now, and has been at all times material herein , a labor organization within the meaning of Section 2 ( 5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary issues-supervisory status It is concluded and found ( based upon the pleadings and admissions thereto) that at all times material herein, the following named persons occupied the positions set opposite their respective names and have been, and are now, agents of Respondents at their Lawrenceburg, Tennessee, plant acting on its behalf, and are supervisors within the meaning of Section 2 (11) of the Act. Edward M. Lindsey_____________________________ Partner Oscar H . Lindsey_______________________________ Partner As indicated elsewhere in this report I find it unnecessary to determine whether Marion E. Copeland (as alleged) is a supervisor within the meaning of the Act B. The issues and contentions The General Counsel in essence contends that the evidence reveals that Respond- ents were engaged in an expansion of their business and that after the union activity occurred at their plant that Respondents engaged in illegal conversations (violative of Section 8(a)(1) of the Act) with various employees, and laid off the 12 employees on December 24, 1964, as part of its plan to fight the Union and in violation of Sec- tion 8(a) (3) of the Act. The General Counsel does not appear to seriously contend that the manner of selection of the employees for layoff reveals discriminatory selec- tion as comparing the selection of one employee over another.2 Respondents contend that they decided in mid-summer 1964 to remodel their plant by additional construction and to lay off some employees after its construction was completed. Respondents contend that their plans to lay off employees after construc- tion was made known to employees throughout the construction peiiod (September to December). Respondents also contend that sales dropped during September, October, and November, 1964 and that they ran out of money and as a result they had to stop their construction plans and had decided by December 1, 1964, to lay off 12 employees Respondents contend that they did not engage in a course of interference, restraint, and coercion of their employees as to their union rights but merely discussed business problems with them. C. Respondents' business and plans to remodel 3 Respondents are engaged in the manufacture of church furniture. They originally commenced the manufacture of church furniture in 1937. In 1947 they commenced I In view of testimony of Respondents ' witnesses , Edward Lindsey and Oscar Lindsey, as to other aspects of the case there is some question of the reliability of their testimony as to the basis for selection of employees for layoff. The reasons given , however, by the Lindseys for individual selection for retention appear plausible I am convinced that the evidence does not establish individual discriminatory selection and so conclude and find. 8 The facts as to Respondents ' business and plans to remodel are based upon a com- posite of the credited portions of testimony of Respondents ' witnesses Edward Lindsey, Oscar Lindsey , and Jack Dunn , Marion E . Copeland , George Rainey , Clarence Hendrix, Lloyd Fisher , Harold Brown , Jack R. Kimbrell , and General Counsel's witnesses Lloyd Dickinson, Marion McGee, Willie Short, Dexter Thompson, Clint Hampton, Harvey Louie McCarter, Floyd Carson , David Bass , Roland Williams , and Stephen Grant Mabry The testimony of the aforesaid witnesses to the extent of the facts found is not disputed and is consistent with the overall facts of the case and is credited Respondent witnesses' (Edward Lindsey, Oscar Lindsey, Marion E Copeland, George Rainey, Clarence Hendrix, Lloyd Fisher , Harold Brown , and Jack R. Kimbrell ) testimony to the composite effect that Respondents' plan was to lay off employees after the additional remodeling and that the employees were so apprised Is not credited . As indicated later, Dunn and Copeland's testimony revealed that the employees were not apprised of the plan The testimony of the aforesaid Respondents' witnesses , did not have a ring of objectivity or truth as to the major critical points in issue. Edward Lindsey 's testimony as a whole appeared more a statement of persuasion than an objective relation of facts . Edward Lindsey appeared to want to testify In generalities and to avoid clearly revealing when things were decided. Edward Lindsey's testimony relating to conversations with employees was to the effect the employees injected the question of unionism while he and his brother merely wanted to talk about business problems Oscar Lindsey's testimony was to the effect that such 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operating at their current location in Lawrenceburg , Tennessee , and in 1961 acquired a plant in Columbia , Tennessee Respondents operate essentially as a woodworking operation in which they make church furniture in a custom manufacturing method pursuant to contract . They do not make furniture unless pursuant to advance order. talks were to enable the employees to make an intelligent choice about the Union Oscar Lindsey's testimony was largely an incorporation by reference to Edward Lindsey's testimony. I do not credit Edward Lindsey 's testimony to the effect that the plans were to make the operations smaller so as to allow him to continue in his Lions Club work and so as to allow Oscar Lindsey to handle the entire operation. Respondents' witnesses Copeland and Rainey did not appear to be frank or forthright witnesses Both Copeland and Rainey appeared someiv hat confused as to whether they were testifying to what was expected of them Copeland , however, testified to the effect that he only talked with Rainey about the reduction in force . Rainey in his testimony alluded to a decision as to the employees being laid off as being made by December 10, 1964, and as being told at that time to disregard the wearing of union buttons . In fact the union buttons were not worn until December 11, 1964 Testimony by Respondents' witnesses Hendrix, Fisher, Brown, and Kimbrell lacked the ring of truth . Hendrix's testimony with reference to whether he wore a union button was reluctant and unbe- lievable . Fischer's testimony was general and somewhat lacking in preciseness Brown and Kimbrell testified to the effect that they engaged in no union activity and yet attended union meetings . In sum I do not find that witnesses ( Oscar Lindsey, Edward Lindsey, Copeland, Rainey, Fisher, Brown, and Kimbrell ) testimony to the effect that the employer had a plan , which was known to employees , to lay off employees after the construction work was completed , to be reliable and credible . Respondents ' witness Dunn, an ordained minister and a salesman for Respondent , impressed me as a frank and forthright witness Dunn testified to the effect that he had many discussions with the Lindseys about the operational plans but that the question of specific layoff of employees was not discussed Although Edward and Oscar Lindsey alluded to economic problems , the only evidence of a specific nature as to a true picture of the Respondents ' financial condition was a stipula- tion reflecting that Respondents filed a partnership income tax return showing a 1964 profit of $2,456 .99 Oscar Lindsey's testimony itself revealed part of the unreliability of this evidence when he said that there are ways to operate a company showing such a loss. There was no specific evidence of the Respondents' earnings or operating capital in 1963 when , according to Edward Lindsey , the Respondents had unsatisfactory earnings and yet was increasing the number of employees It also noted that Respondents' letter of December 28, 1964 ( or December 24, 1964 ), after the layoff and referring to the layoff, did not allude to prior notification to employees about plans to lay off employees. Al- though Edward Lindsey testified to the effect that in 1964 with increased sales and an increased number of men that Respondents failed to maintain production and that in- creased sales was not the reason for this lag, there was no statistical evidence of em- ployees' production or late deliveries adduced by Respondents. I find the testimony of General Counsel 's witnesses to the effect that Respondents had made no notification of impending layoff prior to December 24, 1964, more reliable than testimony of Respondents ' witnesses to the contrary effect and so credit the General Counsel's witnesses in their testimony . The General Counsel 's witnesses who testified to the effect indicated herein impressed me as frank , forthright , and objective witnesses who attempted to accurately testify to the facts I am convinced that Short 's testimony to the effect that lie had no knowledge of a pending layoff is more reliable than his testi- mony to the effect that a layoff was general knowledge Considering all of the evidence, I am convinced that his answer to the latter regard was based upon a misunderstanding of the question propounded to him I find no merit to Respondents ' contention that Edward Lindsey's reference to Woodward on December 11, 1964, about a decision to lay off men reveals that such a plan had existed prior to the Union in view of the overall evidence upon this point Considering all the foregoing , including Copeland's testimony to the effect that he discussed the layoff with Rainey ( and not with others), and Dunn 's testimony, along with Respondents' December 2'8, 1964, letter to employees, it is extremely hard to believe that if Respondents had a plan to lay off employees after the construction period and had made such a plan known to the employees that (1) such would not have been made known to Dunn ( 2) Copeland would have only discussed the matter with Rainey , and (3) Respondents ' letter of December 28, 1964, would have omitted reference to past com- munication about the plan to lay off employees In sum the evidence convinces me that Respondents plan was to remodel their plant for a more efficient operation whereby with the same or larger work force Respondents could achieve greater and more efficient pro- duction. The evidence convinces me that Respondents did not have a plan prior to the advent of the Union to lay off employees after finishing their new construction at the plant, and had not made known to their employees such a plan. LINDSEY'S 1119 The operation is carried out essentially as follows: Lumber is dry kilned and semi- machined at the Lawrenceburg plant and then transported by truck to the Columbia plant where it is further milled and glued into panels for the seats, backs, and ends of the church pews. The finished product is then returned by truck to the Lawrence- burg plant. Installation crews are then dispatched with the furniture to the church for which the furniture was made and they finish the job by the installation of the furniture. Around late summer of 1964 Respondents decided to remodel their plant facilities at Lawrenceburg, Tennessee, and to modify their operations in the Lawrenceburg and Columbia plants so as to become more efficient and reduce labor costs in relation- ship to overall costs. Essentially the planned remodeling of the Lawrenceburg plant consisted of leveling of floors and adding new construction to the wings of the plant. The planned remodeling was designed to enable the placement of machines in such a manner that the flow of production would be more efficient and to eliminate the current need of employees to interrupt production work to help move furniture at the ramp locations. The planned remodeling was designed in connection with the planned modification of operations to enable complete production of furniture at one location and to reduce transportation costs. Respondents commenced remodeling efforts around the first of September 1964 and around December 10, 1964, had substantially completed their iemodelmg plans except for the completion of one planned wing. As to the latter they had started on the addition of two walls. Between December 10 and 24, 1964, Respondents continued the finishing up process on their remodeling plans. On December 24, 1964, Respondents essentially had com- pleted their remodeling plans except as to the completion of the one wing, on which as previously indicated they had started by adding portions of two new walls D. Union activity On December 9, 1964, employee Washington Woodward contacted Union Repre- sentative James Craighead (of Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) and obtained authorization cards. Between December 9 and 11, 1964, Woodward attempted to secure and secured employees to sign the aforesaid authorization cards. On December 11, 1964, Woodward turned in 27 signed authorization cards to the Union around 12 noon. The employees who had signed union cards by December 11, 1964, were Lloyd Fisher, Thomas Todd, Amos Todd, Everett Hill, Marvin McGee, Willie Clemmons, W. W. Woodward, Billy D. Moore, H. A. Belew, Jerry Russ, Herman S. Hollis, Lloyd Dickinson, Dexter Thompson, Floyd Carson, Clarence Hendrix, Clint Hampton, Roland Williams, William Brown, Jack Kimbrell, David Bass, Lloyd Ellis, Lewis Bassham, Robert McGee, Larie McCarter, W. G. Short, James Young, and Grant Mabry.4 E. Events of December 10 and 11, 1964 0 On the night of December 10, 1964, partner Edward Lindsey was told by his daughter that a man named Steel had telephoned her at the Lindsey home in Lawrence- burg, Tennessee, and had asked if her father (Edward Lindsey) knew that they were trying to organize the plant. The next day Edward Lindsey went to the Lawrenceburg plant, told his brother (partner Oscar Lindsey) of the referred-to telephone conversa- tion and asked if he had heard of any union activity in the plant. Oscar Lindsey 4 The facts as to the identity of those who signed union cards are based upon a com- posite of (1) the credited testimony of W. W. Woodward and other General Counsel witnesses relating to the signing of union cards and the wearing of union buttons, (2) stipulations as to employees who wore union buttons, and (3 ) credited testimony of J R. Rainey as to employees who wore union buttons and upon a fair inference to be drawn from all such testimony and stipulation. 'The facts as to the events of December 10 and 11, 1964, are based upon a composite of the credited portions of testimony of Edward Lindsey, Oscar Lindsey and Washing- ton Woodward. To the extent that Edward Lindsey's and Oscar Lindsey's testimony is consistent with the facts set out, such testimony is found unreliable and is not credited. As indicated elsewhere I find Edward Lindsey's and Oscar Lindsey's testimony unrelia- ble in many respects. Woodward impressed me as an honest, sincere, and objective witness. I credit his testimony where in conflict with the Lindseys', as indicated, as being more reliable. I do not credit the Lindseys' testimony to the effect that they did not have the conversation described on December 11, 1964, or to the effect that their talk with Wood- ward was principally about business problems and accompanied by assurances that they were not fighting the Union. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that he had not heard of any union activity in the plant. Thereupon Edward and Oscar Lindsey proceeded to check with George Rainey and Marion Copeland and some employees as to whether there was union activity in the plant. Around 10.00 a.m. Oscar Lindsey contacted Washington Woodward at his work station and asked him to go into Oscar Lindsey's office.6 Woodward went into Oscar Lindsey's office where he, Oscar and Edward Lindsey engaged in a conversation. Oscar Lindsey told Woodward in effect that there was a rumor that the employees were trying to organize a union. Woodward told the Lindseys in effect that this was true, that he had already signed a card. Oscar Lindsey told Woodward that he assumed that it was the same union as was attempting to organize up at Murray.? Oscar Lindsey told Woodward that he could not see how a union could help the employees, that if they (the Lindseys') could pay them more money that they would Edward Lindsey told Woodward that Lindsey's was a small business and if a union were voted in that they (the Lindseys) would have to close the shop. Edward Lindsey then went into his office and returned with a list of church pew orders and told Woodward that he had been underbid on the orders. Edward Lindsey told Woodward that if this continued and if he gave the employees more pay, holidays, and vacations that he could not operate. Both Edward and Oscar Lindsey told Woodward that if the Union involved was any other type of union, that they could try to operate but that they could not operate under the Teamsters' Union. Considering the foregoing, it is concluded and found that Respondents' conduct constituted in effect an inquiry as to union activity of Woodward and other employees and a threat that the Respondent would not operate its plant if the employees selected the union involved. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found.8 The Wearing of Union Buttons During the afternoon of December 11, 1964, after the Lindseys' conversation with W. W Woodward, certain of Respondents' employees commenced wearing union buttons. The employees who commenced wearing union buttons on December 11, 1964 were Lloyd Fisher, Thomas Todd, Amos Todd, Everett Hill, Marvin McGee, Willie Clemmons, W W. Woodward, Billy D. Moore, H. A. Belew, Jerry Russ, Herman S Hollis, Dexter Thompson, Floyd Carson, Clarence Hendrix, Clint Hamp- ton, Roland Williams, William Brown, Jack Kimbrell, David Bass, Lloyd Ellis, Lewis Bassham, Robert McGee, Larie McCarter, W. G Short, James Young, and Grant Mabry. Lloyd Fisher, Clarence Hendrix, William Brown, and Jack Kimbrell stopped wearing the union buttons within several days but all of the other employees named continued wearing their buttons at least through December 24, 1964.9 Marion E. Copeland, George Rainey, James C. Russ, Walter Miller, Frank McGee, Oscar Lindsey III, G. F. Freeman, J. R. Rainey, and Leo Neidergeses neither signed union cards on December 11, 1964, nor wore union buttons between that day and December 24, 1964.10 F. Copeland's alleged illegal interrogation and threats around mid-December 1964 The General Counsel's complaint alleged in effect that Marion E Copeland was a supervisor and that Copeland in mid-December 1964 illegally interrogated employees 6 By virtue of the small size of Respondents' operation and work force (40 production employees), the union activity described herein, and Respondents' activity on this date, I infer that Respondents had knowledge of Woodward's part in organizing the Union prior to calling him into the office. 7 The Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America around the time prior to December 10 and thereafter had been engaged in activity at a plant (referred to as the Murray Ohio plant) located in Lawrenceburg, Tennessee. 8 Johnn'ie'8 Poultry Co., 146 NLRB 770. 6 The facts as to the identity of those who wore union buttons are based upon the same credited testimony and stipulations and inferences as were the facts as to identity of those who signed union cards I credit W. W. Woodward's testimony to the effect that Fisher, Hendrix, Brown, and Kimbrell signed union cards and wore union buttons for several days and then ceased wearing union buttons I discredit the denial by Fisher, Hendrix, Brown, and Kimbrell that they wore union buttons. Each of these witnesses impressed me with lack of candor and forthrightness in their testimony relating to not wearing the union buttons. 10 The facts as to the above employees not signing union cards or wearing union buttons is based upon an evaluation of the credited testimony of Woodward as to the signing of 27 cards and a composite evaluation of all the evidence, and a fair inference therefrom. LINDSEY'S 1121 about union membership activities and desires of employees and told employees that it would be futile to designate the Union as their collective-bargaining representative. The General Counsel apparently contends that a conveisation that occurred between Copeland and James Amos Todd constitutes the alleged unfair labor practices by Copeland. Copeland and Todd, in mid-December 1964, were changing paper on a sanding machine. Todd was wearing a union button at the time involved. The facts otherwise as to the incident are revealed by the following excerpts from Todd's credited testimony: 11 Q. Would you relate what was said in this conversation? A. Well, he just asked me did I think the union would do us any good I told him I didn't know. It was something new to me, but I told the boys I would go along with them, and he said that he didn't believe it would; that he didn't believe the company could afford a union. Q. He didn't believe it would what? A. Could afford a union. Considering the facts above, I conclude and find that the questioning of Todd by Copeland was not done in a manner which constituted interference, restraint, or coercion within the meaning of the Act, and I conclude and find that Copeland's state- ment of belief that the Company could not afford the Union does not constitute inter- ference, restraint, or coercion within the meaning of the Act. Accordingly, such conduct does not constitute conduct violative of Section 8(a)(1) of the Act, even assuming Copeland to be a supervisor within the meaning of the Act.'2 G. Illegal interrogation, threats, and solicitation of employees to withdraw from the Union, etc., around December 18, 1964 13 Around December 18, 1964, employees Willie Clemons, Roland Williams, Marvin McGee and Lloyd Dickinson were separately called into Oscar Lindsey's office. All of the aforesaid employees except Dickinson were wearing union buttons on the occa- sion. In Oscar Lindsey's office, Edward and Oscar Lindsey spoke to the aforesaid employees about the financial condition of Lindsey's and about the Union. Willie Clemons, one of the above-referred-to employees, had practically been raised by the Lindsey family. In the office, Edward Lindsey told Willie Clemons in effect that he (Edward Lindsey) had heard that the employees were trying to organize a union. Clemons, who was wearing a union button, told the Lindseys that he thought so. Edward Lindsey told Willie Clemons in effect that Lindsey's was not able to operate under a union because Lindsey's did not have the money to do so with, that if Lindsey's had to operate under a union that the Lindseys and the employees all would be out hunting for a job before long. Edward Lindsey then asked Clemons in "Todd's demeanor was that of a frank, forthright, and truthful witness Copeland's testimony to the incident was substantially similar to Todd's except Copeland's testimony did not allude to the fact that he had said he did not believe the Company could afford a union. I find Todd's testimony more complete and reliable and so credit it. 19 Findings of Respondents' violative conduct elsewhere in this Decision and recom- mendations as to remedy therefore reveal that a finding in regard to Copeland's conduct is essentially of insignificant value In view of the foregoing as the findings that Copeland's conduct, even if Copeland were a supervisor, was not violative of Section 8(a) (1) of the Act, I find it unnecessary to determine whether Copeland was a supervisor (or not) within the meaning of the Act 11 The facts as to the Lindseys' conversations with employees on or about December 18, 1964, are based upon the credited testimony of Clemons, Williams, McGee, and Dickinson and upon that part of the Lindseys' testimony credited and consistent therewith. The two Lindseys' testimony inconsistent with the facts set out is discredited Clemons, Wil- hams, McGee, and Lloyd Dickinson all impressed me as truthful and objective witnesses I do not credit the Lindseys' testimony to the effect that Williams suggested to them that he would go out to talk to Clemons. I do not credit Edward Lindsey's or Oscar Lindsey's testimony to the effect that their talks with employees were merely discussions of business problems and were accompanied by assurances that they were not fighting the Union. The General Counsel contends in his brief that an unalleged incident in- volving a conversation between the Lindseys and Dickinson relating to the employment of Dickinson's father reveals an additional violation of 8(a )( 1). This incident in my opinion was litigated as bearing upon credibility and has been considered as such. I credit Dickinson's version. I do not consider from the manner that it was litigated that Respondents were on notice that it was being litigated as an incident of violative conduct I therefore do not make-a finding as to whether the incident constituted a violation of Section 8(a) (1) of the Act. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect if he believed that he was telling him an untruth and Clemons replied in effect that he did not believe that he (Lindsey) would but added that he did not see why it would be as Lindsey said. Edward Lindsey then stated in effect that anyway he would like for Clemons to go along with the Lindseys. Clemons told the Lindseys in effect that he worked with the employees, that he had promised to go along with the employ- ees about the Union, that he stuck to his promises, and could not see how he could change. Edward Lindsey then told Clemons that he did not believe Clemons exactly understood this thing right, that Clemons should go home tonight, study it over, and return the next day and tell him what he thought. On the occasion that Roland Williams was in Oscar Lindsey's office, Edward Lindsey stated in effect that: he wanted to talk about the Lindsey's financial trouble, Lindsey's could not woik under a union, Lindsey's owed a lot of money and was not able to give more money to the employees, the Lindseys had been planning to continue their building (remodeling) but they were going to have to quit and not finish the building, the Lindseys believed they could work it around so that Williams would have a good job and a good place to work, the Lindseys wanted Williams to withdraw from the Union, and he would like for Williams to give him his word that he would be for the Lindseys. Edward Lindsey told Williams in effect that the Union did not give him a job and did not pay him, that the Lindseys did not know whether Williams had signed a union card or not, that it made no difference to them if he had, that if he wanted to withdraw it and get the card back that no one would know it but Williams and the Lindseys. Edward Lindsey then told Williams in effect that he believed that Willie Clemons would be for the Company instead of the Union if someone like Williams would go out and talk to him. Edward Lindsey then said that Williams had not given his word that he would be for Lindseys instead of the Union. Williams told the Lindseys in effect that he could not do that but that he would talk to Clemons. On the occasion that Marvin McGee was in Oscar Lindsey's office, Edward Lindsey stated in effect that he wanted to talk to McGee about the Union, that the Lindseys could not stand a union, that if the Union came in that the Lindseys would have to shut its doors and that he (McGee) and the Lindseys would be out of a job. Edward Lindsey also stated in effect that McGee could tell them (the Lindseys) that he was with them, keep his union button on and walk out and no one would ever know that McGee had told the Lindseys he was for them. On the occasion that Lloyd Dickinson was in the office, the Lindseys discussed the Union and their financial problems. Oscar Lindsey told Dickinson that the Lindseys did not know who had signed a union card and who had not. Dickinson told the Lindseys that he had signed a union card. Considering all the foregoing, I am convinced that the total effect of conversations by Edward and Oscar Lindsey with Clemons, Marvin McGee, Williams, and Dickin- son was designed to ascertain the extent of the employees' interest in the union activity which was going on and thereby constituted in effect illegal interrogation within the meaning of Section 8(a) (1) of the Act. I am also convinced that Edward and Oscar Lindsey's statements to Clemons, Marvin McGee, and Roland Williams, made in the presence of each other, to the employees separately, constitute threats that the Lind- sey's plant would be closed if the employees selected the Union as their bargaining representative and that it would be futile to select the Union as the employees' bar- gaining representative. I am also convinced that the statements by Edward Lindsey to Clemons, Marvin McGee, and Roland Williams constituted a coercive solicitation of employees to withdraw their support of the Union. The foregoing conduct is violative of Section 8 (a) (1) of the Act 14 I so conclude and find. Edward Lindsey's statement to Williams constituted a solicitation of Williams to persuade Clemons to withdraw his support of the Union. Such conduct is also violative of Section 8 (a) (1) of the Act. I so conclude and find 15 H The alleged creation of an impression of surveillance December 22, 1964 General Counsel's witness Joe Robert McGee testified to the effect that, he had been called into Edward Lindsey's office on December 22, 1964, he (McGee) was wearing a union button, Edward Lindsey told him that he knew that McGee had signed a union card, he (McGee) told Edward Lindsey that he had signed a card, Edward Lindsey asked him who had been best to him-the Lindseys or the Union, and that he told Edward Lindsey that the Lindseys had knocked him (McGee) out of his holiday pay. From my observation of Joe Robert McGee's demeanor as he testified on direct and cross-examination, I am convinced that McGee's version of any incident involved is Johnuie'8 Poultry Co , 146 NLRB 770 ; Movie Star, Inc., 145 NLRB 319. 15 Movie Star, Inc., et al., 145 NLRB 319. LINDSEY'S 1123 herein would be unreliable in and of itself to support a finding of fact. McGee clearly attempted to convey the impression that he was present on December 24, 1964, when employees were laid off, and only after cross-examination revealed that he was not at work that day. Because of McGee's unreliability as a witness, I find that the General Counsel has not established that the Respondent created the impression of surveillance of employee union activity. I so conclude and find.'6 1. The December 24, 1964, layoff preliminary On December 24, 1964, Respondents employed 40 persons in production work at the Lawrenceburg plant. These persons were M. E. Copeland, George Rainey, Ford Rice, Edgar Cannon, Clifford Hunt, Lloyd Fisher, Bruce Todd, Thomas Todd, Amos Todd, James C. Russ, Everett Hill, Marvin McGee, Willie Clemons, W. W. Wood- ward, Walter Miller, Billy D. Moore, Frank McGee, H A. Belew, Jerry Russ, Herman S. Hollis, Lloyd Dickinson, Dexter Thompson, Floyd Carson, Clarence Hendrix, Oscar Lindsey III, Clint Hampton, G. F. Freeman, Roland Williams, William Brown, Jack Kimbrel, David Bass, Lloyd Ellis, Lewis Bassham, Robert McGee, Larie McCarter, J. R. Ramey, W. G Short, Leo Neidergeses, James Young, and Grant Mabry 17 On December 24, 1964, it may be summarized that 23 of the above-named persons were wearing union buttons (employees Thomas Todd, Amos Todd, Everett Hill, Marvin McGee, Willie Clemons, W. W. Woodward, Billy D. Moore, H. A. Belew, Jerry Russ, Herman S. Hollis, Dexter Thompson, Floyd Carson, Clint Hampton, Roland Williams, David Bass, Lloyd Ellis, Lewis Bassham, Robert McGee, Lane McCarter, W. G. Short, James Young, and Grant Mabry). By virtue of the small size of the Respondents' work force (40 employees) and the open wearing of union buttons, I infer and find as a fact that Respondent knew the employees who wore union buttons and the employees who had worn union buttons and taken them off.18 Dickinson, who never wore a union button, had clearly revealed to the Respondent that he had signed a union card. As indicated previously, Respondents on December 24, 1964, had not completed an additional wing to their building that they had started. On December 24, 1964, Respondents notified 12 employees (Dexter Thompson, Floyd Carson, Clint Hampton, Roland Williams, David Bass, Lloyd Ellis, Lewis Bassham, Robert McGee, Larie McCarter, W. G. Short, James Young, and Grant Mabry) that they were terminated or laid off because of "lack of work." 19 Prior to this notification the Respondents had made no indication to its employees that there was a contemplated layoff. All of the aforesaid employees had signed union cards and had worn union buttons. As indicated previously I find as a fact that the Respondents knew the employees who had signed cards and worn union buttons. The Respondent, either on December 24 or 28, 1964, gave to its employees a letter relating to the December 24, 1964, layoff In this letter Respondent made the following statement: 20 We wish to make clear to you that activity on the part of any employee or outsider had nothing whatsoever to do with the decision to reduce our total employment figure. Each person retained and each person laid off was carefully 16 In respect to the finding of unreliability of McGee , I note , however, that Edward and Oscar Lindsey 's testimony to this incident is similarly incomplete and unreliable 11 1 find it unnecessary to consider or evaluate the fact as to whether Copeland or George Rainey are supervisors , or to make a finding on the status of Lindsey III in this decision. 111 credit Woodward's testimony to the effect that Fisher , Hendrix, Brown, and Kimbrell wore buttons the first several days after December 11, 1964, and later ceased wearing buttons. I do not credit the testimony of Fisher, Hendrix, Brown, or Kimbrell to the opposite effect "Edward Lindsey's testimony revealed that the effect of the action was a permanent discharge. 25 The letter introduced into evidence revealed a date of December 28, 1964, but had an accompanying certification that it was given to the laid off employees on December 24, 1964 It is noted that in the excerpt set out that no mention is made of prior notifica- tion to employees of a layoff In the letter elsewhere mention is made of discussion of operational problems but there is no mention of prior notification of plans to lay off employees. It is highly unlikely that the Respondents ( if they had discussed openly with employees plans to lay off employees ) would not have alluded to such past notification in a letter in which Respondents wished "to make clear " that activity on the part of the employees or "outsiders " had no bearing on the "layoff." 217-919-66-vo l 156-72 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD studied and considered and the reasons arrived at were legitimate, documented and were the considered joint opinion of the owners in consultation with our two top foremen, Mr. M. E. Copeland and Mr. George Ramey. Furthermore the Company's decision to reduce the total employment figure in order to compete in price and quality was made several months ago and would have already been consumated had it not been for the construction work undertaken along with the changing of machines, wiring, etc. On January 15, 1965, Respondent transmitted to McCann Steel Company a letter as follows: 21 January 15, 1965. McCann Steel Company 400 South Second St. Nashville, Tennessee Dear Mr. McCann, We would like to give you an explanation of the situation regarding the steel trusses furnished us. When we placed the order we told you that we would notify you when to make delivery. However, without letting us know the trusses were delivered. This presented no particular problem other than we were not ready and the trusses will have to be moved twice. Now, here is the problem. After getting our building under way we have been hit by the Teamsters Union which has curtailed everything in our operation and has completely stopped our new building. We feel that we can get this settled in a few weeks after an NLRB hearing held yesterday but we have no assurance. We realize this is not your problem but we hope you will understand our situa- tion since this has got everything tied up. We will try to make some arrangement in a short time to handle it one way or another and will keep you informed and up to date. Thank you for your patience. Yours very truly, LINDSEY'S Edward M. Lindsey. As indicated previously, the Respondents contend that they had decided in the summer of 1964 to remodel their plant and, after additional construction, to lay off employees. This contention as well as their contention that such plans were made known to employees prior to December 11, 1964, has been disposed of adverse to Respondents by the resolutions of credibility. Respondents also contend in effect that because their sales dropped in September, October, and November 1964 and because employees were catching up on production that they did not have work for the employees. Respondents contend that their decision to lay off 12 men was made by December 1, 1964. Thus the critical time for measuring the amount of work available for the employees to do appears to be December 1, 1964. There is no evidence as to the amount of work on hand and uncompleted on December 1, 1964. Respondents' evi- dence reveals as of January 1, 1965, and after December 1964 sales of only $9,905.35, that Respondent had uncompleted work on hand in the amount of $44,899.41. One can only speculate as to the amount of production performed in December 1964 since no specific evidence was produced. If Respondent produced on the basis of the monthly average of 1964, it would appear that it would have produced in December 1964, products valued at $26,652.10.22 If this were so, its production in December would have exceeded its sales by $16,746.75. Figuring therefrom, Respondents' amount of work uncompleted around December 1, 1964, would have been valued at $61,646.16. If Respondents' rate of production were higher than the 1964 average in December, the amount of uncompleted work on hand as of December 1, 1964, would have been higher accordingly. Considering the sparseness of the statistics and the speculative nature of the amount of work on hand in December 1964, I am con- 'a Considering the evidence as a whole and Edward Lindsey's testimony as a whole, I reject and do not credit his testimony to the effect that the letter did not reveal the truth but was intentionally misleading In order to obtain sympathy from the McCann Steel Company. za Computed from Respondents' Exhibit No. 1 by adding the difference between the completed work on hand at the beginning of 1964 and 1965 to the amount of work delivered in 1964 and dividing by 12. LINDSEY'S 1125 vinced that such statistics do not reveal that Respondent did not have sufficient work for 2-months work-the amount of work necessary for a 60-day delivery target schedule.23 The Respondents contend that there were work orders completed in December 1964 and stacked up in the plant because the delivery date was in the future. The evidence reveals that during the months preceding December 1964 that Respondent , because of construction and alleged production lag, had set extended delivery dates for its sales orders. It appears clear that when production pace reached a desired 60-day delivery target schedule that for a period of time that some of the extended delivery orders would be produced ahead of the extended delivery dates. The Respondents' statistics do not reveal that Respondent lacked sufficient work for the employees. As to Respondents' contention that it produced more in January, February, and March 1965 with 12 fewer employees , it is noted that no evidence of monthly produc- tion for those months was offered. Respondent had work completed and on hand on January 1, 1965, in the amount of $24,849.56. The Respondent delivered prod- ucts in the amount of $63,253.23 in January, February, and March 1965. It must have produced at least $38 ,403 67 worth of furniture during this time. How much more, if any, is entirely speculative . The foregoing facts do not establish that employ- ees production was higher in 1965 than in 1964. In sum, considering the foregoing , the question reduces itself to whether the Lindsey's testimony, unspecific in nature , is to be believed to the effect that there was sufficient work on hand for the employees . Considering the evidence as a whole, including their testimony as a whole, I find the Lindseys ' testimony in connection with the sparse statistical evidence to be unreliable . From all the foregoing I con- clude and find that the Respondent has not established that its work on hand was at such a level that a layoff was necessary. I do not believe and do not credit the Lindseys' testimony to the effect that the amount of work on hand constitute a part of their decisional process in deciding to lay off (discharge ) 12 men on December 24, 1964. The Respondents also contend that at the time of its alleged December 1, 1964, decision to lay off 12 employees that it was out of money, that the decrease of amount of business resulting in Respondents' loss of usage of customers' 25-percent downpayment money coupled with its own lack of money created a situation wherein it had to let employees go. The Respondents' defense in this regard was largely the testimony, of the two Lindseys as to their debts for construction and as to a stipula- tion revealing that Respondent filed a partnership income tax return showing a 1964 profit of only $2,456 .99. It would appear that the compressing of Respondents' backlog time would reduce to an extent the usage of customers ' money for opera- tions. Thus if customers orders were dormant for 30 days it would appear that Respondent had the free use of such money for such a period . The speedier process- ing of products would, however , also produce speedier profits. The question would appear to be to what extent such effects would affect Respondents ' operating capital. The Respondents did not offer evidence to otherwise reveal their financial picture. As indicated previously, Oscar Lindsey testified to the effect that there were many ways to operate a business in such a situation . I find that in order to believe Respondents ' defense in this matter , that great weight would have to be given to virtually generalized and unsupported testimony of the Lindseys. I find it hard to believe and do not believe that if Respondents were "out of money" in October that they would wait until December to decide , and would decide on December 1, 1964, to lay off employees on December 11, 1964.24 Assuming that a decision was made, because of severe economic problems on December 1, 1964, to lay off men at the end of the first payroll period , a fair inference would be that the employees would have been laid off on the last day of their payroll period. In this case that day would have been December 10, 1964. Considering the foregoing and all the evidence, I conclude and find that the Respondents have not established that the layoff in December 1964 was economi- cally motivated. Considering all of the evidence, I am convinced that the General Counsel has established that the December 24, 1964, layoff was in violation of Section 8(a) (3 ) and (1 ) of the Act. In brief summary the evidence reveals ( 1) that Respondent was engaged in the construction of expanded facilities with no indication having been made to employees of a planned layoff, (2) Respondents' employees engaged 23 Edward Lindsey testified to the effect that Respondent tried to reach a 60-day delivery target. 24 According to Edward Lindsey's testimony. 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in extensive and open union activity , ( 3) Respondents , after knowledge of union activity, engaged in a campaign of interference with employees ' organizational rights including threats designed to cause employees to believe that their union support would jeopardize their jobs , (4) Respondents laid off 12 employees with no prior notification on December 24, 1964, and ( 5) the Respondents in a letter to another businessman stated that- Now, here is the problem . After getting our building under way we have been hit by the Teamsters Union which has curtailed everything in our opera- tion and has completely stopped our new building. We feel that we can get this settled in a few weeks after an NLRB hearing held yesterday but we have no assurance. From the foregoing and all the evidence I conclude and find that the December 24, 1964, layoff was made by Respondents to discourage their employees from engaging in union activity and that this conduct constitutes Respondents ' conduct violative of Section 8(a) (1) and (3) of the Act.25 J. The Lindseys' conversation with Moore-January 1965 26 On some date in January 1965, Edward Lindsey came to Billy Doyal Moore's work station and told him to come into the office to discuss Dexter Thompson's insurance . Moore, who was wearing a union button at the time, went into Lindsey's office and discussed Thompson's insurance, Edward Lindsey's activities with the Lion's Club and the union problem . Edward Lindsey asked Moore if he would drop his part of the Union and go out into the shop and talk to the men about it and get them to drop their part, and then the Respondent could do better and the Respondent could pay the employees more without a union. The Lindseys showed Moore a picture of a new sanding machine and discussed with Moore how the machine could improve operation . Edward Lindsey asked Moore if he could operate the machine. Moore told the Lindseys in effect that he could, that he believed that if he were allowed to operate the machine he could do the sanding now done by three men , that it looked as if he should get 5 cents more an hour. Edward Lindsey told Moore in effect that they could give him 5-cents-an- hour raise if he could operate the machine. Moore asked the Lindseys why he had not already been given a 5-cent raise . Edward Lindsey told Moore in effect that they had been planning on giving him the 5-cent raise starting the first of the year until this union activity started, that the Respondent felt that with the new machine that they could save on labor and give some raises. Considering the foregoing , I conclude and find that Respondents solicited Moore to withdraw from the Union and to persuade other employees to do so, threatened employees that Respondents could not operate under a union, and promised employ- ees benefits if they refrained from becoming or remaining members of the Union 25 Skyline Homes, Inc, 134 NLRB 155. i Based upon a composite of the credited portions of the testimony of Moore and the credited portions of Edward and Oscar Lindsey's testimony , consistent therewith Moore's and Oscar Lindsey 's testimony to the effect that Edward Lindsey went out to get Moore concerning Thompson's insurance matter is credited over Edward Lindsey's testimony to the effect that Moore broached the matter with him. To the extent that Oscar Lindsey's and Edward Lindsey 's testimony of a generalized version of the conversation may be deemed a denial that they asked Moore to drop his part of the Union and to talk to the men to drop their part , that they told Moore they could do better and they could pay the employees more without a union, it is discredited Moore's testimony to the effect that the discussion of "raise" was not conditioned upon his operation of a new machine is discredited. As to the question of whether the "raise " was conditioned on the new machine, Moore appeared evasive and untruthful as well as in his testimony relating to another later conversation with the Lindseys relative to a possible raise. As to the latter incident I credit the Lindseys' and Hendrix 's version of events over Moore's and find it unnecessary to set out the facts of the latter incident herein since it is not alleged in the complaint and litigated only on the basis of credibility . As to the other facts relating to the conversation as to "raises" I find the truth , in view of the overall evidence, to be a composite of the credited testimony of Moore, Oscar Lindsey and Edward Lindsey as set out. I do not credit Moore 's testimony to the effect that the Lindseys told him that they believed they could start his raise if he dropped his union part and went back and talked to the men. LINDSEY'S 1127 by telling Moore that Respondents could do better and pay employees more without a union. The foregoing constitutes conduct violative of Section 8(a)(1) of the Act. I so conclude and find.27 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes , burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices , it will be recommended that Respondents cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondents violated Section 8(a)(3) and ( 1) of the Act by the discriminatory layoff (discharge ) of 12 employees , it is recommended that Respondents offer to each of them immediate and full reinstatement to their former or substantially equivalent position , without prejudice to their seniority and other rights and privileges , and make them whole for any loss of earnings they may have suffered by reason of such discrimination by payment to each of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the said offer of reinstatement , less their net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB.28 As the unfair labor practices committed by Respondents were of a character which go to the very heart of the Act, it is recommended that Respondents cease and desist therefrom and cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Edward M. Lindsey and Oscar H. Lindsey , a partnership doing business as "Lindsey's" constitute Respondents engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs , Helpers and Taxicab Drivers Local Union 327, affili- ated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of employees thereby discouraging membership in or activities on behalf of a labor organization, Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in this case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Edward M. Lindsey and Oscar H. Lindsey, a Partnership d/b/a Lindseys , their agents , successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Teamsters , Chauffeurs, Helpers and Taxicab Drivers Local Union 327 , affiliated with International Brother- 27 The credited evidence does not reveal that Respondent promised Moore a 5-cent raise increase if he dropped his union activity and attempted to persuade others 28 Any contended economic problems of Respondents can be handled in the compliance stage of this case. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, or in any other labor organization of its employees , by discharging, laying off, or otherwise discriminating in regard to the hire or tenure of employment or any terms or condi- tion of employment of any of their employees. (b) Interrogating their employees concerning their or other employees' union affiliation or activities , in a manner constituting interference restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) Threatening employees with the closing of the plant , decrease of employ- ment opportunity , or other reprisals because of their activity on behalf of the Union (Teamsters , Chauffeurs , Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America). (d) Soliciting employees to withdraw from the Union, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (e) Soliciting employees to persuade other employees to withdraw from the Union, in a manner constituting interference , restraint , or coercion in violation of Section 8 (a)(1) of the Act. (f) Promising benefits to employees to induce them to withdraw from the Union or to refrain from union activity. (g) In any other manner interfering with , restraining, or coercing their employees in the exercise of their right to self-organization , to form, join, or assist labor orga- nizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act , and to refrain from any and all such activities. 2. Take the following affirmative action I find will effectuate the policies of the Act: (a) Offer to David E . Bass, Louis G. Bassham , Floyd A. Carson, W. Lloyd Ellis, Clint Hampton, Stephen Grant Mabry , Harvey Larie McCarter, Joe Robert McGee, Willie Short , Dexter Thompson, Roland Williams, and James E. Young , immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority and other rights and privileges. (b) Notify David E. Bass, Lewis Bassham , Floyd A. Carson , W. Lloyd Ellis, Clint Hampton , Stephen Grant Mabry, Harvey Larie McCarter , Joe Robert McGee, Willie Short, Dexter Thompson , Roland Williams , and James E. Young if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Mili- tary Training and Service Act of 1948, as amended , after discharge from the Armed Forces. (c) Make whole David E. Bass , Lewis Bassham, Floyd A. Carson, W. Lloyd Ellis, Clint Hampton, Stephen Grant Mabry, Harvey Larie McCarter , Joe Robert McGee, Willie Short, Dexter Thompson , Roland Williams, and James E. Young , for any loss of pay they may have suffered by reason of the discrimination against them by pay- ment to each of them of a sum of money equal to the amount they normally would have earned as wages from the date of their layoff (discharge ) to the date of the Respondent's offer of reinstatement in the manner set forth in the section entitled "The Remedy " (d) Preserve and, upon request , make available to the Board and its agents for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant or necessary to the determination of the amounts of backpay due and to the reinstatement and related rights provided under the terms of this recommended Order. (e) Post at their premises in Lawrenceburg, Tennessee, copies of the attached notice marked "Appendix." zs Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being signed by Respondents or their representa- tive, be posted by Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 21 In the event that this Recommended Order be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words , "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order " LINDSEY'S 1129 (f) Notify the Regional Director for Region 26 , in writing, within 20 days from the date of this Recommended Order, what steps Respondents have taken to comply herewith.30 It is also recommended that complaint paragraph 10 (relating to alleged creation of impression of surveillance of union activities ) be dismissed. 30 In the event that this Recommended Order be adopted by the Board this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL offer David E Bass, Lewis Bassham, Floyd A. Carson, W. Lloyd Ellis, Clint Hampton , Stephen Grant Mabry , Harvey Larie McCarter, Joe Rob- ert McGee , Willie Short, Dexter Thompson , Roland Williams, and James E. Young, immediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them. WE WILL NOT discourage membership in or activities on behalf of Teamsters, Chauffeurs , Helpers and Taxicab Drivers Local Union 327, Affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , or in any other labor organization of our employees by discharging, laying off, or otherwise discriminating in regard to their hire or tenure of employ- ment or any term or condition of employment of any employee. WE WILL NOT interrogate our employees concerning their or other employees union affiliation or activities , in a manner constituting interference , restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with the closing of the plant , decrease of employment opportunity , or other reprisals , because of their activities on behalf of the union (Teamsters, Chauffeurs , Helpers and Taxicab Drivers Local Union 327, Affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America). WE WILL NOT solicit employees to withdraw from the union , in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Act WE WILL NOT solicit our employees to persuade other employees to withdraw from the union , in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT promise benefits to employees to induce them to withdraw from the union or to refrain from union activity. WE WILL NOT in any other manner interfere with, restrain , or coerce any of our employees in the exercise of their right to self-organization , to form, or assist labor organizations , to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. All our employees are free to become or remain or to refrain from becoming or remaining members of Teamsters , Chauffeurs, Helpers and Taxicab Drivers Local Union 327 , Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America EDWARD M. LINDSEY AND OSCAR H. LINDSEY, A PARTNERSHIP D/B/A LINDSEY'S, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. Cumberland Shoe Corporation and Boot and Shoe Workers' Union, AFL-CIO. Cases Nos. 26-CA-1810 and 26-CA-2012. January 26,1966 DECISION AND ORDER On February 3, 1965, Trial Examnier Eugene F. Frey issued his Decision in Case No. 26-CA-1810, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion in that case. Thereafter, the Respondent and General Counsel filed briefs and exceptions to the Trial Examiner's said Decision and supporting birefs. The Respondent filed a motion to reopen the record for further hearing in order to introduce newly discovered material evidence. The General Counsel opposed the motion or in the alternative requested that the facts and issues of Respondent's motion be litigated at the time of the hearing scheduled in Case No. 26- CA-2012. On May 4, 1965, the National Labor Relations Board granted the Respondent's motion, remanding the case for further testi- mony before the Trial Examiner hearing the issues in Case No. 26- CA-2012, and the Regional Director for Region 26 consolidated the cases for hearing. On September 27, 1965, Trial Examiner Eugene F. Frey issued his Decision in the consolidated cases affirming his prior conclusion as to Case No. 26-CA-1810 and finding in Case No. 26-CA-2012 that Respondent had engaged in and was engaging in certain other unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and General Counsel filed briefs and exceptions to the Trial Examiner's Decision of September 27,1965. Pursuant to the provision of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial 156 NLRB No. 103.